With South Africa going through the third wave of Covid-19 new infections, the government is on a race to achieve herd immunity amongst the citizens as soon as possible. The vaccination drive is in full swing as a measure to contain the corona virus and prevent high mortality especially in the most vulnerable groups of the population.
Despite seemingly being a noble move to take the vaccine, there are sections of society who have raised objection to taking it citing various reasons from religion, culture, medical to sheer matters of choice. In as much as the government trusts that everyone has seen how fatal the pandemic is and its disastrous effects, it is under an obligation to respect people’s choices.
Section 12 (2) of the Constitution of the Republic of South Africa Act 108 of 1996 provides that everyone has a right to bodily and psychological integrity, which includes the right to make decisions with regards to medical treatment (vaccination). Section 15(1) provides that everyone has a right to freedom of conscience, religion, thought, belief and opinion. Effectively this means on grounds of thought, opinion and belief anyone can refuse to take the vaccine.
However, section 36 of the same constitution provides that rights can be limited under certain circumstances. In exercise of such, the Constitution requires that limitation be done in a way that is reasonable and justifiable in an open and democratic society based on freedom, human dignity and equality, subject to;
- The nature of the right;
- Importance of the purpose of the limitation;
- The nature and extent of the limitation;
- Relation between limitation and purpose;
- Less restrictive means to achieve the purpose.
Therefore in the event that the government decides to make vaccination mandatory for all citizens and residents in South Africa, section 12 and 15 will be viewed in light of the provisions under section 36 of the constitution. In the cases of Minister of Safety and Security And Another v Gaqa (2002) ZAWCHC 9 and Minister of Health Western Cape v Goliath And Others 2009 (2) SA 248 (C) the Courts upheld decisions that limited the right protected under section 12.
A possibility remains that vaccination may be made mandatory, in order to assist in bringing the Covid-19 virus under control. As we speak the Department of Labour and the business community under the auspices of NEDLAC met in March 2021 and discussed at length the permissibility of companies having vaccination policies in their workplaces. The suggestion was accepted, albeit that those companies desist from dismissing employees who decline to take the vaccine but rather pursue an engagement process that seeks to find common ground and also explore ways to find them alternative roles so as not to pose a risk to those who would have taken the vaccine. This shows that there is real appetite in the business sector to make vaccination mandatory so that business continuity persists, especially for those in sectors which cannot operate remotely and are critical to the heartbeat of the economy.
With regards to international travel the regulations in place require the presentation of a negative covid-19 certificate which is approved by the World Health Organisation for every traveller into the Republic. Where one does not have it they are required to undergo an antigen test immediately, at their own cost. This is mandatory, and in line with this we may see the introduction of regulations to require vaccination certificates before one is allowed into the Republic in future.
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